Ramey v. Gober

• Decision Date: 07 August 1997
• Docket Number: No. 96-7055,96-7055
• Citation: 120 F.3d 1239
• Parties: Alma L. RAMEY, Appellant, v. Hershel W. GOBER, Acting Secretary of Veterans Affairs, Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1239

120 F.3d 1239

Alma L. RAMEY, Appellant, v. Hershel W. GOBER, Acting Secretary of Veterans Affairs, Appellee.

No. 96-7055.

United States Court of Appeals, Federal Circuit.

Aug. 7, 1997.

Rehearing Denied; Suggestion for Rehearing In Banc

Declined Oct. 10, 1997.

Theodore D. Peyser, Washington, DC, argued, for appellant.

William C. Lindsey, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, argued, for appellee. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and Anthony H. Anikeeff, Assistant Director. Of counsel on the brief was F. John Brizzi, Office of General Counsel, Department of Veterans Affairs, Washington, DC. Of counsel was Donald E. Zeglin, Office of General Counsel, Department of Veterans Affairs, Washington, DC.

Before RICH, LOURIE, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

Vernon L. Ramey served in the United States Army during the Second World War and was exposed to ionizing radiation at Nagasaki, Japan, following the detonation of an atomic bomb there. In January 1980, Mr. Ramey died of cancer. His widow, appellant Alma L. Ramey, subsequently filed an application for dependency and indemnity compensation with the Department of Veterans Affairs ("DVA"). The DVA denied her application. After exhausting her administrative remedies, she appealed to the United States Court of Veterans Appeals, which upheld the denial of her claim for compensation. We affirm.

I

Mr. Ramey was in the Army from April 1945 through January 1947. He was aboard the U.S.S. General S.D. Sturgis when it departed from Seattle, Washington, on October 18, 1945, en route to Japan. On November 2, 1945, the Sturgis reached Nagasaki, Japan, where it anchored. The ship left Nagasaki the next day with Mr. Ramey aboard.

In February 1978, Mr. Ramey was hospitalized with complaints of abdominal pain and indigestion. An X-ray revealed that he suffered from carcinoma of the colon, and a liver scan revealed a "possible hepatoma." With respect to the liver scan, the examiner indicated in the medical report that it was not "possible to differentiate here between metastatic disease and possible hepatoma, though because there are two lesions [in the liver], metastatic disease is probably more likely." Mr. Ramey died in January 1980 at the age of 54. His death certificate indicated "carcinoma of colon" as the cause of death.

In August 1989, Mrs. Ramey filed with a DVA regional office ("RO") an application for dependency and indemnity compensation claiming that her deceased husband had served in Nagasaki shortly after the atomic bombing of that city. The RO asked the Defense Nuclear Agency ("DNA") to confirm that Mr. Ramey had been exposed to ionizing radiation during his military service. The DNA is the agency within the Department of Defense that serves as the Department's center for nuclear expertise; its mission includes researching the effects of nuclear weapons on humans. The DNA's first report stated that Mr. Ramey did not serve with either the Hiroshima or the Nagasaki forces. Accordingly, the RO denied Mrs. Ramey's claim.

Upon further investigation, the DNA issued a second report, which confirmed that Mr. Ramey had been aboard the U.S.S. Sturgis and had been in Nagasaki for the one-day period that the ship was anchored there. The DNA report, however, noted that the likely level of exposure to ionizing radiation suffered by U.S. occupation forces in Hiroshima and Nagasaki was low.

After receiving the second DNA report, the RO referred the case to the DVA's Director of the Compensation and Pension Service for an opinion as to whether Mrs. Ramey's claim should be allowed. The Director of Compensation in turn requested an opinion from the Chief Medical Director regarding the relationship between Mr. Ramey's cause of death and his military service. A report issued by the Assistant Chief Medical Director concluded that it was "highly unlikely that his disease can be attributed to exposure to ionizing radiation in service." Referring to an article concerning the health effects of radiation, the report concluded that among Japanese atomic bomb survivors, "no excess of colon cancer" has been discovered at low levels of exposure, and that "risks have increased only after 'intense irradiation.' "

Based on the Medical Director's report and "following review of the evidence in its entirety," the Director of Compensation informed the RO that "there is no reasonable possibility that the veteran's disability was the result of exposure" to ionizing radiation. The RO then denied Mrs. Ramey's claim. The Board of Veterans' Appeals affirmed the RO's denial of the claim on the ground that the preponderance of the evidence was against the claim that the disease that resulted in Mr. Ramey's death was service connected.

On appeal to the Court of Veterans Appeals, Mrs. Ramey sought to establish service connection in three ways. First, she contended that her husband's death resulted from liver cancer, a radiogenic disease as to which there is a statutory presumption of service connection. See 38 U.S.C. § 1112(c)(2)(M). Second, she argued that a DVA regulation, 38 C.F.R. § 3.311, creates a presumption of service connection for veterans who were exposed to radiation at Hiroshima or Nagasaki and who later contracted colon cancer. Finally, she contended that she was entitled to compensation under the general statutory provision granting compensation to surviving spouses for service-connected disabilities suffered by wartime veterans. See 38 U.S.C. §§ 1110, 1541.

The Court of Veterans Appeals rejected each of Mrs. Ramey's contentions. The court first concluded that the statutory presumption of service connection for liver cancer did not apply, because the "medical evidence of record ... supports the finding that the carcinoma in the veteran's liver was a result of metastasis from the colon cancer" and that colon cancer was the cause of Mr. Ramey's death. The court next rejected Mrs. Ramey's argument that the DVA's regulation creates a presumption of service connection for certain other radiogenic diseases, including colon cancer. Finally, the court held that the evidence failed to show that Mr. Ramey's colon cancer was service connected.

II

In this court, Mrs. Ramey presses only one of the three contentions that she raised before the Court of Veterans Appeals--that she is entitled to a presumption of service connection based on a DVA regulation. She argues that 38 C.F.R. § 3.311, which was promulgated pursuant to the Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub.L. No. 98-542, 98 Stat. 2725 (1984) ("the Radiation Compensation Act"), creates a presumption of service connection for veterans, such as her husband, who were exposed to ionizing radiation in service and contracted certain radiogenic diseases, including colon cancer, within specified periods after their exposure. Under the regulation, she contends, a presumption of service connection should have been invoked once she showed that her husband was exposed to radiation at Nagasaki and developed colon cancer more than five years after his exposure. Her claim should have been granted based on the presumption of service connection, she argues, because the DVA did not rebut the presumption by adducing affirmative evidence of a more likely cause for her husband's disease.

A

In analyzing whether the DVA regulation creates a presumption of service connection for radiation-exposed veterans who contract certain radiogenic diseases, we must first address Mrs. Ramey's argument that the Radiation Compensation Act required the DVA to create such a presumption by regulation. We conclude that the statute did not require the creation of a presumption of service connection.

The Radiation Compensation Act was enacted in response to concerns that veterans who were exposed to dioxin or ionizing radiation during their service were having difficulty supporting their claims for compensation. See 130 Cong. Rec. 13,147-49 (1984) (statement of Sen. Cranston). Prior to the Act, veterans had to proceed under the general compensation provisions, which require proof that the disease in question was incurred in the service. See 38 U.S.C. §§ 1110, 1154(a); 38 C.F.R. § 3.303. In the case of claims based on radiogenic diseases, claimants had to show that the particular veteran's disease resulted from in-service exposure to ionizing radiation. Veterans and their survivors who attempted to establish direct service connection were seldom successful under that regime because of the severe difficulties of proof, including the lack of ready access to scientific and medical evidence about the long-term effects of radiation exposure and the lack of reliable information about exposure levels. In addition, there was great inconsistency in the way radiogenic-disease claims were addressed by the agency's various regional offices. See H.R.Rep. No. 98-592, at 7 (1984), reprinted in 1984 U.S.C.C.A.N. 4449, 4453; 130 Cong. Rec. 13,147-49 (1984) (statement of Sen. Cranston).

Congress enacted the Radiation Compensation Act to address these problems and, more generally, to "ensure that Veterans' Administration disability compensation is provided to veterans who were exposed during service in the Armed Forces ... for all disabilities arising after that service that are connected, based on sound scientific and medical evidence, to such service." § 3, 98 Stat. at 2727. The Act recognized that the Veterans Administration (now the DVA) had not promulgated "permanent regulations setting forth specific guidelines, standards, and criteria for the adjudication of claims" for compensation based on exposure to ionizing radiation and that "[s]uch claims ... present adjudicatory issues which are significantly different from issues generally presented in claims based upon the usual types of injuries incurred in military...